This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Robert J. Morgan, et al.,



County of Rice, et al.,


Husting and Engstrom, Inc.,


Filed February 11, 1997

Affirmed in part, reversed in part, and remanded

Crippen, Judge

Rice County District Court

File No. C3951050

James M. Williams, The Carriage House, 212 West Franklin Avenue, Minneapolis, MN 55404 (for Appellants)

Arvid L. Wendland, 825 East Second Street, P.O. Box 247, Blue Earth, MN 56013 (for Respondents County of Rice, et al.)

Stephen P. Rolfsrud, Esq., James H. Turk, 127 South Second Street, P.O. Box 3049, Mankato, MN 56002-3049 (for Respondent Husting and Engstrom)

Considered and decided by Crippen, Presiding Judge, Short, Judge, and Foley, Judge.[*]



Appellants Robert and Evelyn Morgan brought an action against the County of Rice, its former highway engineer Charles Schmidt, and the construction firm of Husting and Engstrom, Inc., alleging that regrading work by the county on the intersection abutting their property caused them damage in the form of poor drainage, unsafe egress, and loss of aesthetics. The trial court determined that appellants' complaint was barred by the two-year statutes of limitations, Minn. Stat. §§ 541.07(6), 541.051, subd. 1(a) (1994), and granted summary judgment for the respondents. Appellants claim, among other things, that representations made by Rice County's current highway engineer tolled the statute of limitations. We reverse and remand for the trial court's decision on the question of whether the statute of limitations was tolled as to the respondent county, and we otherwise affirm the trial court.


Appellants live in a single-family home at the intersection of two roads in Rice County. Between 1990 and 1992, the county undertook a project to regrade portions of the two roads. During construction, respondents allegedly eliminated a drainage ditch that ran along the edge of the property and a drainage pipe that ran under appellants' driveway and raised the street level by approximately ten feet, causing the land and house to look as if it were "in a hole."

Before 1992, appellants complained that the grade was too high. To appease appellants, Charles Schmidt, the county highway engineer at the time, agreed to lower the grade somewhat. In summer 1992, appellants were still not satisfied and complained to the county that the regrading would cause drainage and safety problems, and reduce the aesthetic appeal of their property.

In May 1993, appellants experienced severe flooding due to the regrading of the roads and the elimination of the previous drainage. Husting and Engstrom, Inc. had ceased doing work on the intersection by 1992. Schmidt was no longer the county engineer and had been replaced by Mitchell Rasmussen. Appellants allege that they contacted Rasmussen and he indicated to them that the county "would take care of the entire problem," including "replacement of the drainage system, eliminating the safety problem[,] and restoring the proper house and lot elevation." Appellants also allege that Rasmussen told them that he needed time to study the logistics of regrading the intersection. According to appellants, it was not until April 22, 1994, that Rasmussen informed them that the county was "not going to do anything about the matter."

Appellants served the respondents with process between November 1994 and April 1995. The trial court ruled that appellants' complaint was barred by the two-year statutes of limitations, Minn. Stat. §§ 541.07(6) and 541.051, subd. 1(a) (1994), and granted summary judgment for respondents.


On appeal from summary judgment, this court must determine whether there are any genuine issues of material fact and whether the lower court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). Furthermore, this court will view the facts in a light most favorable to the party against whom summary judgment was granted. Id. To successfully oppose a summary judgment motion, the non-moving party may not rely on mere general statements of fact or conclusory allegations as to its right to trial but must demonstrate at the time the motion is made that specific facts exist that create genuine issues. Mickelson v. Travelers Ins. Co., 491 N.W.2d 303, 306 (Minn. App. 1992).

1. Applicable Statute of Limitations

Under section 541.07(6), claims arising from a change in road grade must be made within two years after the time damage is first realized. Appellants suggest that this claim goes beyond the subject of establishing a grade and focuses on the change in drainage that existed before the grade change occurred. But the complaint specifically regards damages associated with change of the highway grade. Because section 541.07(6) governs appellants' claim, we need not decide whether Minn. Stat. § 541.051, establishing a two-year statute of limitations on actions for harm caused by improvements to real property, is applicable as well.

The trial court properly recognized that the statutory time period begins to run from the "date that the plaintiff first suffers damage and not from the date when the last known negligent act occurs." Capitol Supply Co. v. City of St. Paul, 316 N.W.2d 554, 555 (Minn. 1982). The trial court further observed that in the absence of tolling, this action would be precluded. Appellants "first suffer[ed] damage" in 1992, after the regrading of the road proved to be unsatisfactory. It was at that time that appellants complained to the county about problems regarding poor drainage, unsafe egress, and diminution in aesthetic value.

2. Tolling

Although appellants allege that respondents engaged in fraudulent concealment, they present their argument in terms of equitable estoppel. Appellants allege that county engineer Rasmussen stated on several occasions that "the county would take care of the entire problem," including "replacement of the drainage system, eliminating the safety problem[,] and restoring the proper house and lot elevation." Minnesota courts have recognized that where a party assures another that it will take care of an actionable problem, such assurances may toll statutes of limitations on a theory of equitable estoppel. United States Leasing Co. v. BIBA Info. Processing Servs., 436 N.W.2d 823, 826 (Minn. App. 1989), review denied (Minn. May 24, 1989).

'A promise of future action * * * is enough to stop the running of the statute of limitations, without an express mention of the statute.' Here, an inference can be drawn that there was a promise of future action on which appellants relied. Therefore, a material question of fact exists whether the statute of limitations was tolled by equitable estoppel.

Id. (quoting Sohns v. Pederson 354 N.W.2d 852, 855 (Minn. App. 1984)).

Both the trial court and respondents correctly observe that respondents could have done nothing to "conceal" appellants' damages, but they fail to address the subject of Rasmussen's alleged representations. A genuine issue of material fact exists as to whether Rasmussen's representations tolled the statute of limitations with regard to respondent Rice County.

3. Alternative Claims

Appellants allege several alternative theories, none of which has merit. First, appellants maintain that their action is one in equity and not subject to a statute of limitations. Even if appellants' action were in equity, the claim is one for damages, and Minn. Stat. § 541.07(6) applies to all actions for damages. Furthermore, statutes of limitations generally apply to actions in equity absent compelling reasons to the contrary. See, e.g., Jefferies v. Corwin, 363 So. 2d 600, 601 (Fla. Ct. App. 1978) ("A court of equity should apply the statute of limitations in an equity suit with the same substantial effect and construction as it would receive at law."); Yokochi v. Yoshimoto, 353 P.2d 820, 823 (Haw. 1960) ("A court in equity is not bound by the statute of limitations, but, in the absence of extraordinary circumstances, it will usually grant or withhold relief in analogy to the statute of limitations relating to law actions of like character."); Maynard v. Board of Educ., 357 S.E.2d 246, 254 (W. Va. 1987) ("[Courts in equity] will generally look first to what the statute of limitations would be for any analogous right or remedy at law.").

Second, appellants allege that an action on the county highway engineer's bond is essentially an action in contract and thus subject to a six-year statute of limitations for contracts. Minn. Stat. § 541.05(1) (1996) (the six-year statute of limitations for contract actions). But under section 541.05, the six-year statute of limitations applies only where "no other limitation is expressly prescribed." Id. The bond in the present case prescribes its own limitations period, requiring that actions be "brought within two years from the date you discover the loss." Furthermore, Minn. Stat. § 541.07(6) is also applicable, notwithstanding appellants' claim that theirs is an action on the bond, as appellants' claim arises from "damages caused by * * * a change in the originally established [street] grade."

Finally, appellants allege that the county's road alteration constituted inverse condemnation and that appellants' claim is not subject to the two-year statute of limitations. Although appellants attempt to recharacterize their claim, it essentially remains one for "damages caused by . . . a change in the originally established [street] grade," and it is time-barred by section 541.07(6).

4. Other Parties

As for respondents Husting and Engstrom, Inc., and Schmidt, the statute of limitations has run, and appellants have alleged no facts that would toll Minn. Stat. § 541.07(6). Appellants suffered damages as early as 1992 and more than two years passed before they served their complaint on Charles Schmidt in December 1994 and Husting and Engstrom, Inc. in April 1995.

Affirmed in part, reversed in part, and remanded.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.